Aaron Swartz’s Prosecutor: I Wasn’t Seeking Maximum Sentence

U.S. Attorney Carmen Ortiz, the leading prosecutor in the case against the late hacker and activist Aaron Swartz, said in a statement released late Wednesday that she would have recommended to the judge a prison sentence of six months, not the maximum sentence of 35 years Swartz potentially faced under charges of computer fraud and other crimes.

Ortiz has been heavily criticized since Swartz took his own life on January 11th. Some commentators and Swartz’s family believe the threat of jail time and what they consider Ortiz’s prosecutorial overreach were contributing factors in Swartz’s decision.

Ortiz, however, insists her office’s conduct in the case was “appropriate” given the crime.

“The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct — while a violation of the law — did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases,” said Ortiz in her statement. “That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct — a sentence that we would recommend to the judge of six months in a low security setting.”

“At no time did this office ever seek — or ever tell Mr. Swartz’s attorneys that it intended to seek — maximum penalties under the law,” she added.

A reports this week from the Wall Street Journal suggested that Ortiz’s office offered Swartz’ lawyers a plea deal which was rejected because the government was insisting on some amount of jail time, reportedly six to eight months.

Ortiz, in her statement, acknowledged that Swartz’s defense “would have been free to recommend a sentence of probation,” which, if approved by a judge, may have kept Swartz out of jail with the understanding that a repeat incident would likely put him behind bars.

“Ultimately, any sentence imposed would have been up to the judge,” wrote Ortiz.

A White House petition to remove Ortiz for her approach to Swartz’ case has more than 40,000 signatures, enough to prompt an official response. Darrell Issa, chairman of the U.S. House of Representatives Committee on Oversight and Government Reform, is investigating Ortiz and the Department of Justice’s handling of the case.

Swartz was arrested in 2011 after sneaking into a Massachusetts Institute of Technology network closet, connecting a laptop and using a program to rapidly download a large amount of academic research. His trial was expected to begin in the spring, but the charges against him have since been dropped — standard procedure when a defendant dies.

Ortiz’s full statement:

January 16, 2013

STATEMENT OF UNITED STATES ATTORNEY CARMEN M. ORTIZ REGARDING THE DEATH OF AARON SWARTZ

As a parent and a sister, I can only imagine the pain felt by the family and friends of Aaron Swartz, and I want to extend my heartfelt sympathy to everyone who knew and loved this young man. I know that there is little I can say to abate the anger felt by those who believe that this officeâ€™s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.

I must, however, make clear that this officeâ€™s conduct was appropriate in bringing and handling this case. The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably. The prosecutors recognized that there was no evidence against Mr. Swartz indicating that he committed his acts for personal financial gain, and they recognized that his conduct – while a violation of the law – did not warrant the severe punishments authorized by Congress and called for by the Sentencing Guidelines in appropriate cases. That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge. At no time did this office ever seek – or ever tell Mr. Swartzâ€™s attorneys that it intended to seek – maximum penalties under the law.

As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. We strive to do our best to fulfill this mission every day.